Bill Gould has some advice for the labor movement: Turn back. Turn back before it's too late. What prompts his suggestion is a case involving Boeing's plan to move some production of its 787 airliners to South Carolina, a right-to-work state, from Washington state. The union in Washington protested the move, and the National Labor Relations Board has taken up its complaint. Republicans immediately pounced on the case as evidence of the Obama administration's business-unfriendly attitude—and even Gould, who served on the board in the Clinton administration, is mystified by the NLRB's actions. *
"The Boeing case is unprecedented," he says. "I agree with much of what this board has done and is likely to do, but I don't agree with what the general counsel has done in the Boeing case. The general counsel is trying to equate an employer's concern with strikes that disrupt production and make it difficult to make deadlines—he's trying to equate that with hostility toward trade unionism. I don't think that makes sense."
If this fight were limited to the facts so far, it might not be political. The complaint was filed by Lafe Solomon, the general counsel for the NLRB, who told the New York Times that he "can't not issue a complaint" when evidence like this is handed to him. The NLRB's political appointees haven't weighed in yet; they won't do so until the board holds a hearing next month.
Republicans in South Carolina have been less shy. "The administration is acting like a bunch of thugs," said Sen. Jim DeMint. "If this is checks and balances, God help our country," said Gov. Nikki Haley. "This is nothing more than bullying by the labor unions. This is President Obama and Harry Reid carrying their water."
And so on. When I talked briefly to Haley earlier this month, she was insistent: Every Republican presidential candidate must explain "how would you have handled this situation had it been under your presidency." When Boeing's General Counsel Michael Luttig appeared before the Senate last week, Republicans showered him with sympathy over what the situation could do to jobs and griped about the Obama administration.
This might surprise the unions, if their members were dewy-eyed innocents who'd never met Republicans before. They're not. They figured this would turn political. They almost take pride in it. "Boeing's made it into a political argument, but it's really a legal case," says Connie Kelliher, a spokeswoman for International Association of Machinists and Aerospace Workers Local 751, the Washington union that filed the complaint with the NLRB. "Because they don't have a legal argument, they want to make it political argument."
Here's the legal argument made by the union and the NLRB. The Wagner Act prohibits companies from moving operations to avoid unions. On Feb. 28, the Seattle Times published an interview with Boeing's CEO, Jim Albaugh, in which he seemed to say, yes, Boeing was basically doing that. "The overriding factor was not the business climate," explained Albaugh, "and it was not the wages we are paying today. It was that we can't afford to have a work stoppage every three years. And we can't afford to continue the rate of escalation of wages."
That, say the unions, is all the proof you need. But Gould and other critics say that while the board may look kindly upon the complaint, its position won't stand up in the courts.
The NLRB, for its part, denies that it's a political fight at all (although it launched Fact Check page on its website, which—possibly a first for the Obama administration—rebuts a claim made on RedState.com). "It wouldn't have mattered if the complaint was about moving from a union state to another union state," said the NLRB's public affairs director Nancy Cleeland, a former labor reporter for the Los Angeles Times. "It has nothing to do with right-to-work states. These are the issues we deal with every day."
For Republicans, that's the main issue: the very existence of the NLRB. The board has a Democratic majority only because President Obama recess-appointed Craig Becker, a former AFL-CIO and SEIU counsel. In February, 176 House Republicans voted for an amendment to the budget bill that would have completely defunded the board. The nagging treatment that Bill Gould remembered from the 1990s was one stage in a very long war against the reforms of the New Deal. We're deep into the latest stage of the war. Republicans are much more confident that the public wants them to win it.
The anti-labor side turned on a dime from opposing the now-hopeless Employee Free Choice Act to opposing the Boeing complaint. This side includes groups like the Workforce Fairness Institute, which according to its last available tax forms has four directors, no full-time employees, and a $10 million budget. It includes basically every Republican politician in South Carolina, who all have full confidence that the state is on their side. In 2010, the state voted on a constitutional amendment to ban something like EFCA—which would have let workers organize without secret ballots—from ever going into effect. The NLRB called it unconstitutional. It passed with 86.2 percent of the vote.
"I'd be surprised if this complaint was politically motivated," says Andy Arnold, a lawyer and Democratic activist in Greenville, S.C., who works on labor issues in the state. "Most people do politically motivated things when they stand to benefit from them. I mean, does Barack Obama benefit from it? He wouldn't win South Carolina in a million years."
Correction, May 18, 2011: The aricle originally identified the NLRB as the NRLB throughout. (Return to the corrected sentence.)